Prickett: No Place For Courtroom Intimidation By Cops

Ed. Note: Greg Prickett is former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas. While he was a police officer, he was a police firearms instructor, and routinely taught armed tactics to other officers.

In the early morning hours on April 14, 2016, Austin police SWAT executed a no-knock warrant on the residence of Peter and Lisa Harrell. Police had information that their 18-year-old son, Tyler, was a “major drug dealer” and was armed. I’m normally opposed to the use of SWAT to execute search warrants, but in this case it was justified.

When the police entered, they found only a small amount of marijuana, but Tyler, with a semi-automatic AK-47, shot one of the officers. Where the problem starts is the intimidation tactics used by the police during the trial.

Tyler Herrell (photo via Austin Police)

Tyler had been involved in an incident in December of the previous year, when someone shot at him after demanding all drugs and money. He was at a friend’s home and managed to get the gun away from the robber. Tyler did not report the incident to the police, but his parents believe that others who were present reported it. They believe this was how the police learned of Tyler’s activities and why they started to gather evidence of his drug dealing.

Checks of the trash showed baggies with marijuana residue and an empty box for 7.62x39mm ammunition.[1] So the SWAT team took the warrant, threw in a flash bang, and entered the $500,000 townhome. They were almost immediately engaged by rifle fire from the top of the stairs, and one officer, James Pittman, was wounded before Tyler realized that it was the police and stopped shooting. The search turned up only one ounce of marijuana.

Tyler said that he thought it was intruders breaking in, and I believe him. This is not the first time that this has happened. It happened in 2016 to Kenneth Probus. It happened in 2015 to Ray Rosas. It happened in 2014 to Henry McGee. Probus made a deal and got probation, Rosas was acquitted, and McGee was no-billed by the grand jury.

Tyler’s mother was shouting at him to stop, that it was the police, the police loudspeaker was announcing that fact, and a later test showed that the announcement could be clearly heard. But other shooters had gotten off, including both Rosas and McGee in Texas.

The Austin Police did not want that to happen, so when Tyler was tried for attempted capital murder, they packed the courtroom with on-the-clock officers who were wearing their police SWAT uniform. There were eighteen of them in total, in camouflage or dark green combat gear. And the judge,[2] Karen Sage, allowed it, but had the defense arranged a similar demonstration, I can guarantee you that the judge would have blown a gasket. Judge Sage had a sign outside the courtroom prohibiting “protest buttons, T-shirts, hats, posters and cause-supporting slogans.” The uniforms were okay because it only said “Police” on the back of the uniform shirts.

I think that the jury made the correct decision here as to guilt, aside from the fact that only one ounce of weed was found at the residence. The prosecutor showed that Tyler was dealing drugs via photos and videos of drugs, money, and guns that Tyler had on social media and his phone. With the previous robbery attempt, the recent purchase of the AK, and the drug involvement, he doesn’t deserve to get a pass.

It’s not appropriate, however, for the police to intimidate the court or a jury. It’s neither appropriate for them to be in uniform nor for them to be on the clock. Character assassination, though oft-time practiced by police, is not acceptable.

[1] The 7.62×39 round is well-known to police as being used in both the SKS and AK family of semi-automatic rifles. It’s presence would tend to support the use of both SWAT and a no-knock warrant.

[2] Like most of the elected district judges in Texas, Judge Sage was a prosecutor before she ran for judicial office.

Post navigation

37 thoughts on “Prickett: No Place For Courtroom Intimidation By Cops”

Agree wholeheartedly, but as long as it’s allowed why would they stop? I’d be very interested to hear any suggestions for counter courtroom packing, or reform ideas. With no intent to derail the discussion what was the most effective policy change you experienced in law enforcement? If that’s beyond scope, please ignore.

Were I on the jury, it wouldn’t have “intimidated” me. They can sit there in uniform all day, but in the jury room, they won’t get to vote. I doubt the judge felt any pressure either, or she would have excluded them.

More than any impact on the trial, the misconduct here is the waste of tax dollars in paying all these officers to go sit in a courtroom where security does not seem to have been a particular concern, thereby insuring they are doing nothing whatsoever to preserve public order out on the streets (i.e., their job). Whoever ordered this should be required to come out of pocket to reimburse the Austin municipal treasury for the attendant waste of public assets.

Live in Austin myself, and while I am admittedly not your average juror, such an exhibition would have pissed me off and caused me to vote a two word verdict just to piss off the cops. However, most of the people in town love them some cops.

Well, yeah, but it only takes one non-average juror to throw a monkey wrench into things. Had I been on that jury and noticed both the cops and the sign prohibiting other forms of free speech, the judge would have received a note telling her that the presence of the cops was really pissing me off.

Setting Greg to the side, my point was influenced by your many posts emphasizing the judge’s role as gatekeeper . Prosecutors will conceal evidence and violate Brady if the judge will let them off with a light admonition of don’t do it again, the role of judges in setting bail, signing warrants, etc.

And that is exactly what I did in my second post. I didn’t mean to imply that somehow you didn’t agree with my point. I just wanted to indicate what is the truth, namely, that my thinking on these matters has been greatly influenced by your posts

But, starting with the middle-of-the-night no-knock warrant itself, it seems that, too often, things are arranged so as to insure the situation will be bad. A really loud “open up, police!” in the middle of the night might fall on sleeping ears before the flash-bang, and deafened ears afterward, regardless of what some objective sound measurement shows.

The 7.62×39 round is well-known to police as being used in both the SKS and AK family of semi-automatic rifles. It’s presence would tend to support the use of both SWAT and a no-knock warrant.

I might be biased by hindsight here, but the idea of breaking down someone’s door unannounced because you know them to be armed sounds like questionable wisdom, like sneaking up on a bear because you know they’ve got great big claws and teeth.

“If you are going to bust down a door in a manner that show[s] you are intending to meet some resistance, you should be sure resistance is on the other side of the door.” – ‘Paul B’, captainsjournal.com, 10/08/2014.

The thrust of the article is about the judges eschewing his responsibility of maintaining a neutral courtroom but the cops’ behavior is outrageous. The sociopathic, (and, given the groupthink, I would almost say “gang-like”) sense of self-righteousness and entitlement is really beyond the pale for these tax-feeding, ostensibly public “servants”.

“WE GET to bust down doors and resistance is criminal regardless of the awareness of people on the other side because our actions are pure as the driven snow by definition.”

For what it is worth, I would do the following if confronted with the situation in the courtroom that is described in this important post.

First, I would ask the Deputy US Marshals in the courtroom to have a quiet talk with the “on-the-clock officers who were wearing their police SWAT uniforms.” They would be told quietly to leave and if they wanted to come back they should dress in civilian clothes. I would tell the DUSMs to blame me. If the quiet talk did not work, then, outside the presence of the jury, I would order the DUSMS to clear the courtroom and not let back in any spectators wearing uniforms or other clothing that obviously conveyed a message.

We have done the foregoing when gang members show up dressed in gang regalia in an effort to scare the shit out of cooperators. They get pissed off and bitch about the First Amendment and such. They are told there is no First Amendment on the Fifth floor. (The joke is also that there is no Fourth Amendment on the Fifth floor, but that is another story.)

The disgraceful behavior by the SWAT officers should never have been tolerated by the judge. Then, again, I don’t have to run for in an election to keep my job.

All the best.

RGK

PS I once had a DUSM, recently transferred from SD California, San Diego, who worked with an extremely tough, extremely good, and extremely fair female federal judge. He was taught to demand the removal of hats and caps from those in the cheap seats. After the first time he did that in my courtroom, I told him never to do that again unless the cap bore the Texas Longhorns logo. If such a hat appeared, he was instructed to shoot the wearer.

Hats are a curious issue. I’ve never been in a courtroom where hats are allowed to be worn, though it strikes me as a relic these days. Having given it some thought, and writing about it, I’m untroubled by the rule, not because it makes particular sense but decorum in the courtroom matters if we’re to take what else happens there seriously.

From the linked article: “Interim Austin Police Chief Brian Manley said in a statement that he allowed the officers, who were on duty, to go to the trial after a request from prosecutors.” From prosecutors. This wasn’t just the good old boys showing up to give moral support to their wounded comrade. It wasn’t even a stunt conceived by the police. This was a deliberate, prosecutorial tactic.

” It happened in 2016 to Kenneth Probus. It happened in 2015 to Ray Rosas. It happened in 2014 to Henry McGee.”

It happened in 1657, according to Sir Matthew Hale, when “a bailiff pushed abruptly and violently into a gentleman’s chamber early in the morning, in order to arrest him, but did not tell his business, nor use words of arrest, and the party not knowing that the other was an officer, in his first surprise snatched down a sword, which hung in his room, and killed the bailiff; it was ruled to be manslaughter.” (1 Hale 470: 3 Russ Cr 623)

But a footnote (g) to the 1800 re-printing of Hale suggests that this might have been Buckner’s Case (1658) Sty 467. If so, it wasn’t a bailiff he killed, but a creditor, Horwood. Buckner knew full well who Horwood was and what was up. Still, Horwood and his henchman had unlawfully imprisoned Buckner, so it was manslaughter, and Buckner did not have to hang for it. Buckner was burnt in the hand accordingly.

I wonder if Mr Harrell would have taken a burnt hand over 13 and a half years.

Comments are closed.

Scott H. Greenfield

Nothing in this blog constitutes
legal advice. This is free.
Legal advice you have to pay for.EmailTwitter: @ScottGreenfield

What Do You Think?

I allow thoughtful comments, but please keep yours civil and respectful. There are rules here. I reserve the right to delete or edit any/all comments. Links are not permitted in comments and will be deleted. If you don't like the rules, comment elsewhere. Volenti non fit injuria. SHG